Section 203
Previously, domestic law enforcement and foreign intelligence collection operated on separate tracks. This separation was seen as necessary because of the very different legal regimes that are associated with domestic law enforcement and foreign intelligence collection. The events of September 11, which involved several individuals who had lived in our country for some time, made it clear that more cooperation between domestic law enforcement and foreign intelligence collection was necessary. Section 203 facilitates this cooperation by allowing "foreign intelligence information" gathered in criminal investigations by domestic law enforcement to be shared with the intelligence community. In this manner, section 203 enables the intelligence community access to critical information that might otherwise be unavailable.
Section 206
The Foreign Intelligence Surveillance Act (FISA) facilitates domestic intelligence gathering related to foreign powers by allowing the collection of such information without the legal restrictions associated with domestic law enforcement. Section 206 of the Patriot Act modernizes FISA wiretap authority. Previously, FISA required a separate court order be obtained for each communication carrier used by the target of an investigation. In the era of cell phones, pay phones, e-mail, instant messaging, and Black Berry wireless e-mail devices such a requirement is a significant barrier in monitoring an individual’s communications. Section 206 allows a single wiretap to legally "roam" from device to device, to tap the person rather than the phone. In 1986, Congress authorized the use of roaming wiretaps in criminal investigations that are generally subject to stricter standards than FISA intelligence gathering, so extending this authority to FISA was a natural step.
Section 213
The 1986 Electronic Communications Privacy Act granted the government the authority to delay notification for search of some forms of electronic communications that are in the custody of a third party. Section 213 statutorily extends the ability of law enforcement to delay the notice to any physical or electronic search with a showing that notice would create an "adverse result." This provision is an effort to improve the government’s ability to investigate suspected terrorists by granting law enforcement greater leeway to operate clandestinely. To a large extent, section 213 simply codifies existing law enforcement practice in a manner consistent with recent court decisions. Nevertheless, the "adverse result" standard (defined in 18 U.S.C. § 2705), by virtue of its ambiguity, creates the potential for abuse. As a result, section 213, which is not currently subject to the four-year sunset contained in the Act, should, nevertheless, be carefully reviewed at that time.
Section 216
The Patriot Act substantially changes the law with respect to law enforcement access to information about computer use including Web surfing. Reaching for an analogy from the old rotary dialed telephone system, the Act extends provisions written to authorize installation of pen registers and trap and trace devices, which record outgoing and incoming phone numbers, to authorize the installation of devices to record all computer routing, addressing, and signaling information. The government can get this information with a mere certification that the information likely to be obtained is relevant to an ongoing criminal investigation.
Today, with more than fifty million U.S. households online, when more than 1.4 billion e-mails change hands every day, when computer users surf the Web and download files using phone lines, mobile devices, and cable modems, the government can learn a tremendous amount of information about you from where you shop to what you read to who your friends are through the use of so-called transactional records. The potential for abuse, for invasion of privacy, and for profiling citizens is high.
Section 217
If someone unlawfully enters your home, you can ask the police to enter your premise without a warrant to investigate. Section 217 clarifies that similar authority applies to "computer trespassers." This allows law enforcement, with the permission of the owner of a computer, to monitor a trespasser’s action without obtaining an order for a wiretap. This provision constrains the ability of hackers to use computers without being detected.
Although most law-abiding computer users’ online activities will not be monitored by the government as a result of section 217, the new authority may be overboard. A "computer trespasser" is defined as anyone who accesses a protected computer (which includes any computer connected to the Internet) without authorization. Individuals who exceed their terms of service agreements with their Internet service provider or individuals who use their computer at work to download an MP3 file could be subject to intrusive government monitoring.
Section 218
Prior to the enactment of FISA in 1978, the intelligence community had virtually unchecked authority to conduct domestic surveillance of U.S. citizens and organizations. FISA created a special court to ensure that "the purpose" of domestic intelligence gathering was to obtain foreign intelligence information. The FISA court structure and sole purpose standard attempted to balance the need to collect foreign intelligence information without the constraints of the Fourth Amendment with increased protections for Americans exercising their First Amendment rights. But the sole purpose test has created operational difficulties for foreign intelligence investigations that uncover criminal wrongdoing and lead to an investigation of the criminal conduct. The events of September 11 further blur the line between foreign intelligence investigation and domestic law enforcement and the ability to jointly work the case and share information between the intelligence and law enforcement communities has become more important in the context of the investigations of Al Qaeda.
John Podesta is a visiting professor of law at the Georgetown University Law Center. He served as President Clinton’s chief of staff from 1998-2001.Section of Individual Rights & Responsibilities
American Bar Association, 740 15th Street, NW
Washington, DC, 20005
No comments:
Post a Comment